DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7399-17 Dear This is in reference to your application for correction of your naval record pursuant to the provisions of Title 10 of the United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 15 January 2019. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. In addition, the Board considered the advisory opinion (AO) provided by Headquarters Marine Corps (MMRP-13/PERB) and the statements, character letters, and documentation you provided in rebuttal. Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. The Board carefully considered your desire to remove your fitness report (FITREP) for the reporting period 2 May 2016 to 2 September 2016 and the Relief for Cause (RFC) package that voided your Military Occupational Specialty (MOS) of 0911. The Board also considered your request to reinstate your 0911 MOS. The Board specifically considered your contention that the adverse marks on your FITREP all cited an investigation that was not proven with tangible evidence but, rather, only by accusations that were never proven true. You additionally contend that the RFC package is in error due to a lack of evidence—other than the accuser’s testimony—establishing your guilt. You specifically contend that the accuser had a demonstrated lack of integrity, and you noted, through supporting documentation, that he was convicted by special court-martial (SPCM) for an orders violation that involved exploiting the tragedy of another drill instructor in order to defraud recruits and fellow Marines out of money. The Board also considered your contention the accuser knowingly destroyed the only physical evidence of the alleged adultery when he did a factory-reset of his smartphone and erased the alleged video. As supporting documentation, you pointed to the portions of text messages that were recovered by the Naval Criminal Investigative Service, which, you contend, establish that he intentionally and knowingly factory-reset his phone while being investigated for the misconduct that resulted in his conviction at SPCM. Further, the Board considered your contention that your FITREP and the RFC package are unjust because you were denied your requested trial by court-martial or an opportunity to clear your name, protect your career, and prove your innocence. You further contend that, when asked why you weren’t allowed a court-martial as requested, you were told by your command that they couldn’t pursue a court-martial because of “the character standing of the accuser.” Lastly, the Board considered the character letters from officers and senior Marines with whom you served in Iraq and at the Marine Corps Recruit Depot. The Board also considered the character letter of Major L., who served as defense counsel at the Recruit Depot during the period in question. Concurring with the AO, however, the Board determined that the investigation supported, by a preponderance of the evidence, your RFC, your command’s administrative action, and your adverse FITREP. Specifically, the Board concurred that the findings of the investigation substantiated a justifiable basis for your RFC and that the suspected offense was properly administratively adjudicated. Further, the Board concurred that you were free to refuse nonjudicial punishment but had no corresponding right to be tried by court-martial. Additionally, the Board relied upon the commanding general’s statement in the RFC package that, in addition to your misconduct, the command had lost all trust and confidence in you. Finally, although the Board considered the new evidence and found the rebuttal statements and character letters compelling, it determined they were insufficient to overturn the prior decision. It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely, Executive Director